Oregon Appellate Court 01-12-11
by: Abassos • January 11, 2011 • no comments
Read the full article for details about the following new cases:
- Evidence - FRE 404(3) Prior Bad Acts
- Plea Bargain - Guardian Ad Litem
- Max Sentence - Prison + PPS
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404(3) - Prior Bad Acts===
Where defendant was charged with ordering his dog to attack someone, a prior incident where he ordered his dog to attack someone was admissible. The two part test for admissibility under 404(3):
- Is the evidence independently relevant for a noncharacter purpose?
- Is there sufficient proof that the uncharged misconduct was committed and that the defendant committed it.
The test is from State v. Johnson, 313 Or 189 (1992). There used to be a third part to the test: a balancing of probative value vs prejudice. However, OEC 404(4) now precludes such balancing. Here, the prior incident was admissible to show defendant's knowledge of the dog's propensity to attack when ordered. And there was ample evidence that the prior event occurred. Thus, the evidence was admissible.[http://www.publications.ojd.state.or.us/A138664.htm State v. Martin]
Plea Bargain - Guardian Ad Litem
There is no requirement, where the defendant has a guardian ad litem, that the guardian must approve a plea bargain. This is Kip Kinkel's PCR appeal. The court also finds there was evidence to support the PCR court's findings and the guilty plea was voluntary. Affirmed. Kinkel v. Lawhead
Max Sentence - prison + PPS
On a C felony, a defendant cannot receive more than 60 months of combined prison and post-prison supervision. Here, it was an illegal sentence to impose 36 months incarceration and 36 months PPS. With 36 months prison, 24 months was the maximum possible PPS. Reversed and Remanded. This was a per curiam opinion on well settled law. I mention it here to make sure everyone is aware of this rule. State v. Elk
